“There is no definition of “habitual residence” in the Hague Convention. It is a question of fact to be determined by the court.
The approach to be taken by courts in determining habitual residence was recently restated by the Supreme Court of Canada in Balev. The court considered the two approaches being used by courts in Ontario to determine habitual residence: the dominant “parental intention approach” and the “child-centered approach”, which focused on the child’s connections with the state. The Supreme Court of Canada concluded that “habitual residence” should be determined by using a “hybrid approach” and stated at para. 43:
On the hybrid approach to determining habitual residence, the application judge determines the focal point of the child’s life – “the family and social environment in which its life has developed” – immediately prior to the removal or retention.
The judge considers all relevant links and circumstances-the child’s links to and circumstances in country A; the circumstances of the child’s move from country A to country B; and the child’s links to and circumstances in country B.
Under the hybrid approach, instead of focusing primarily on either parental intention or the child’s actual acclimatization, the judge determining habitual residence must look at all relevant considerations arising from the facts of the case.
Considerations include but, are not limited to, the duration, regularity, conditions, and reasons for the child’s stay in a member state and the child’s nationality. No single factor dominates the analysis, rather the application judge should consider the entirety of the circumstances: Balev at para. 44. The hybrid approach is “fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions”: Balev at para. 47. While courts allude to factors or considerations that tend to recur, there is no legal test for habitual residence and the list of potentially relevant factors is not closed.
Although the hybrid approach requires the court to consider all the circumstances, the court emphasizes that it is the habitual residence of the child at the time immediately prior to the wrongful removal or retention that is relevant.
The Supreme Court of Canada concluded that the hybrid approach fulfils the goals of prompt return by:
a. deterring parents from abducting the child in an attempt to establish links with a country that may award them custody;
b. encouraging the speedy adjudication of custody or access disputes in the forum of the child’s habitual residence; and
c. protecting the child from harmful effects of wrongful removal or retention. (para. 59)
In Balev, the parties married in Ontario and moved to Germany, where their two children were born. The children were struggling at school, so the father consented to the children moving to Canada with their mother for the school year. After the consent period lapsed (i.e. the school year was over), the children remained in Ontario with their mother and the father requested their return under the Hague Convention. The court had to determine if the children were habitually resident in Germany or Canada at the time of the wrongful retention. The question before the Court in Balev was whether a child’s habitual residence can change while he or she is staying with one parent in another country under the time-limited consent of the other. Using the hybrid approach, a judge may consider that the intention of the parents was that the move would be temporary and the reasons for that agreement but should also considers all other evidence relevant to the children’s habitual residence. In Balev, the consideration was that the children had lived in Ontario, with their father’s consent, for the school year, which may have changed their habitual place of residence from Germany. The facts in Balev are quite distinguishable from the case before this Court.
The Mother in the case before me relied heavily on Balev for the proposition that I must consider the children’s close ties to Ontario and find that their place of habitual residence was Ontario. Balev does not stand for the proposition that the children’s circumstances following the improper retention must be considered. Balev stands for the proposition that if the children had time-limited consent to move to country B, the court can consider their circumstances in country B. It does not stand for the proposition that the court must also consider the circumstances after the alleged wrongful removal or retention (which is expressly addressed in the Hague Convention itself).”